Keeping politicians' hands off the Net & everything else related to technology
The following passage is from the introduction to my forthcoming paper on the DMCA. I thought it was particuarly relevant to the discussion below about legal versus non-legal barriers:
As Robert Frost famously noted, good fences make good neighbors. Fences demarcate property lines, enhance privacy, and prevent unauthorized entry. No one would dispute that fences are vital to protecting private property rights.
Solveig Singleton comments on my recent post about the dismal state of DRM standards.
She emphasizes that DRM, however imperfect, is a second-best solution to the problem of piracy. I think we just disagree about that: I don’t think DRM is an effective piracy deterrent, nor do I think employing DRM technologies is an effective business strategy. But since I’ve made that point in the past I won’t rehash it now.
What I do want to comment on, though, is this:
Physical or technological barriers, DRM included, are in a lot of ways preferable to legal ones. They operate by prevention. They are responsive to consumer demand. They operate across international boundaries. They don’t have associated policing or enforcement costs (though they aren’t free, either). Imagine if the police had to keep burglars out in an environment where no one had thought of or invented locks on doors, or even walls. It would be grossly inefficient, even absurd.
I’m not sure what to make of the contention that DRM has no enforcement costs, and is not a “legal barrier.” DRM gets its force not by technology alone, but by a legal prohibition on tinkering with that technology. It requires doing such things as punishing people who make unauthorized DVD-playing software, unauthorized streaming video players, and unauthorized iTunes Music Store clients.
Ms. Singleton may consider these restrictions to be a necessary cost of preventing piracy. But regardless, they are legal restrictions. They require the use of police and courts to enforce. They restrict our freedom to tinker with the electronic devices we legimately own–a right that may not be important to her but is of importance to a lot of computer geeks. And they should, I would hope, at least be treated with skepticism by libertarians.
This proposal from IEEE for a “patent lite” regime to augment the current patent system strikes me as a very bad idea. It would lower the bar for patents by eliminating the obviousness requirements, thereby expediting the review process and allowing “limited patents” to be granted more quickly. And “limited patents” would have a term of only four years.
This proposal seems like it would take the worst features of our current patent system and make them even worse:
In fact, no examination–beyond a check to see that the minimum filing requirements are met–would be performed before issuing a registration number, which the patent owner would be required to use alongside the invention to gain protection. Because there would be no official determination of novelty, there would be no presumption of validity for the limited patent. Anyone who pays an examination fee and submits prior art showing the protected item is not novel could challenge the limited patent. Should the patent owner try to sue an alleged infringer, an examination for novelty would be the initial step in any litigation. At the time of the filing of a lawsuit, the proceeding would be stayed pending the patent office’s examination. That exam would take less time than a regular patent examination, because obviousness would not be considered. In addition, the alleged violator of the protection would be able to provide prior art for the examiner to consider, evidence that would substantially reduce the cost and duration of litigation, particularly when there is evidence that protection should not be granted because the technology isn’t novel. Because the goal is to prevent knockoffs, it would protect against these who were aware of technology in the market. Showing that the technology had been independently created before the patentee’s first commercial use would be an absolute defense. But it would be a personal defense; the patent would still be valid against others who cannot show substantial development of their products prior to the patented product’s introduction.
I think the idea of trying to “prevent knockoffs” really gets to the heart of what’s wrong with software patents in the first place. Google is a knockoff of Altavista. Windows is a knockoff of the Macintosh. Linux is a knockoff of Unix. Internet Explorer is a knockoff of Netscape. Excel is a knockoff of VisiCalc. Ordinarily, we call such knockoffs “competitors.” Yet in the bizarro world of software patents, when a company becomes “aware of technology in the market” and decides to build their own technology to do the same job, (even if it’s developed independently) that’s something the law ought to punish.
Patents are supposed to protect specific implementations of an idea, not the idea itself. “Knockoffs” are supposed to be permitted–even encouraged–as long as the knockoff isn’t implemented in the specific way described in the patent. But because of the nature of software, there isn’t any clear difference between an idea and its implementation. (And implementations are already protected by copyright, so it’s not clear why addition protection is needed at all). As a result, you wind up with broad concepts, such as one-click shopping or wireless email being granted patent protection. This proposal will only make that problem worse.
Hat tip to Mike.
I don’t think anyone’s ever accused The Nation of being a magazine of sober or nuanced thinkers. But this article on network neutrality is strikingly clueless and hysterical even by that magazine’s standards:
Without proactive intervention, the values and issues that we care about–civil rights, economic justice, the environment and fair elections–will be further threatened by this push for corporate control. Imagine how the next presidential election would unfold if major political advertisers could make strategic payments to Comcast so that ads from Democratic and Republican candidates were more visible and user-friendly than ads of third-party candidates with less funds. Consider what would happen if an online advertisement promoting nuclear power prominently popped up on a cable broadband page, while a competing message from an environmental group was relegated to the margins. It is possible that all forms of civic and noncommercial online programming would be pushed to the end of a commercial digital queue.
Sounds pretty scary! How are broadband providers going to accomplish this feat?
Beats me. Websites will still be controlled by third party companies like Google and Yahoo, as well as millions of individuals. Ads on those websites will be controlled by them as well. Comcast might be able to block websites whose content it disagrees with, but there’s not much they can do to change what content a given website contains.
Couldn’t Comcast replace website ads with ads of their own before they’re delivered to the consumer? They talk about “deep packet inspection” technologies that allow them to monitor and manipulate Internet traffic at the application layer. But while such technology does exist, it’s far too clumsy, brittle, and labor-intensive to do anything like what this paragraph describes. There are lots of ways to evade such technologies, especially if there are billions of dollars in advertising revenues at stake.
More to the point, it’s extremely hard to imagine that Comcast would attempt such a stunt, as there would be a ferocious backlash from consumers, from web site owners, and from Congress. And besides, what presidential candidate or major corporation would buy ads that are placed in such a sleazy manner? There’s a reason you don’t typically get unsolicited spam for Ford trucks–mainstream institutions have reputations to protect.
The author of this article seems to assume that the Internet as we know it will be replaced with a ComcastNet that only has Comcast-approved web sites. But that doesn’t make a lot of sense. Who would pay money for such an Internet? How would they explain to the millions of people who read DailyKos, or use Craig’s List, or post to their LiveJournals, that they’re no longer allowed to access those sites, but that there are comcast-approved websites they can visit instead! The reality is that telecom companies just aren’t that powerful, and consumers just aren’t that docile. Consumers are already well used to having unfettered access to the entire web, and they’re not likely to meekly accept it if that access is restricted.
There are some pretty good arguments in favor of network neutrality regulation, but invoking wildly pessimistic visions of Internet dystopias isn’t among them.
James DeLong laments young libertarians’ anti-IP tendencies, quoting my former colleague Adam Theirer:
Almost every young libertarian I come in contact with these days is equally opposed not just to the sort of new copyright protections that the content providers seek, but even to traditional copyright laws and rules that pre-date the 76 Act. And not all of these people are wacko libertarian-anarchist types. Many respected young libertarian minds are turning against copyright. I don’t believe that the best strategy is to ignore them. You guys should engage them in debate and defend your views before this extreme anti-IP position becomes more mainstream.
Since I might be one of the young libertarians he’s referring to, I thought I’d briefly comment on this. I agree with Adam that young libertarians tend to be more skeptical of intellectual property law than older ones, and I appreciate his urging his colleagues to engage our arguments. However, I respectfully disagree with the contention that most of us are “equally opposed” to all intellectual property laws. To the contrary, most of the young libertarian professionals I know are supporters of intellectual property, but are critical of the way that the powers of the copyright industry have been expanded in recent years. I made such a critique a few months ago.
To make sure this wasn’t just me, I conducted a quick poll on a mailing list I’m on, which is dominated by libertarian professionals under 35. Of the nine who responded, seven identified themselves with this school of thought, whereas only 2 identified themselves as favoring the abolition of intellectual property. (None of them expressed support for the status quo or for further strengthening) I’m not going to claim that my friends are representative of young libertarians generally, but clearly there are a lot of us who aren’t IP anarchists.
So why are we critical of the content industry? DeLong seems to think it’s because of our unsophisticated view of property rights. Apparently, we’re fixated on the notion that property has to be a physical object, and so we can’t wrap our brains around the complexities of intangible property. I’ll just say I don’t think that’s right. I think every one of the people who responded to my little poll would enthusiastically endorse strong protections of other “intangible” rights, such as contract enforcement.
So it doesn’t appaer to me that DeLong took Adam’s suggestion that he engage his critics very seriously. He’s very good at taking potshots at the anti-IP fringe, but I’ve hardly ever seen him seriously engage his mainstream opponents. Their goal isn’t to abolish intellectual property, but to re-assert the principles that grounded America’s intellectual property system for the first 200 years of our nation’s existence.
On the off chance that Mr. DeLong is unfamiliar with this critique, allow me to pose four questions that could serve as a useful starting point for discussion. They’re about my pet issue, the Digital Millenium Copyright Act, which I think is at the center of a lot of copyright-related disputes. They’re questions that, despite the DeLong’s voluminous writings on high-tech copyright in general and the DMCA in particular, I’ve never seen him address directly:
My ex-roomie Julian offers another example of how digital rights management technology is needlessly inconveniencing paying customers:
A politics professor at a small liberal arts college is bringing a class to D.C. in March and has asked me to talk to his students, who have been doing a seminar on protest music in American politics, about some of the ideas in this column. Naturally, I’d like to be able to illustrate what I’m talking about with some examples, short clips from songs by Metric, Rilo Kiley, Green Day, Radiohead, Mike Doughty, The Decemberists, and others. I own all the songs in question–bought them on iTunes rather than just downloading them from Limewire or Kazaa. But Apple’s DRM doesn’t want to let me extract these short clips–indubitably a fair use, and something I could obviously do legally just by cueing up the songs manually at the appropriate timecode.
I’d be curious to know what DMCA supporters think he should do in this kind of case. Should he write a letter to each of the labels that publish these songs and ask for permission to use the exceprts? Should iTunes have a feature where you’re allowed to purchase small song clips for a nickel a piece? Or is it just possible that the most sensible way to deal with this sort of thing is to legalize DRM circumvention in circumstances where the use would otherwise be legal.
The Electronic Frontier Foundation has filed a class action lawsuit against AT&T for allowing the NSA to violate its customers’ privacy. I’m not sure what the chances of the lawsuit succeeding are, but Ars has a good explanation for why such data mining schemes are a poor way to battle terrorism. Matthew Yglesias has another.
Ars highlights an interview with Microsoft executive Jim Allchin about how computer hobbyists are being frozen out of access to the next generation of digital video:
Although as a platform Vista has been approved by CableLabs at this point, an important step that will still be necessary for the PC/CableCARD reality is CableLab’s approval for finshed individual OEM PCs as well. Although Vista has been approved, OEMs will in fact still need to get their individual machines certified by CableLabs as well.
What that means in plain English is that if you want to view cable TV content on your computer, you’ll need to choose a computer model that’s been individually inspected by cable labs. What if you assembled your own PC from scratch? It’s a safe bet that CableLabs won’t consider it worth the time to talk to you.
This is a problem that will only get worse. What the DMCA is doing, in essence, is making users of non-proprietary hardware and software systems second-class citizens. Already, most DRM schemes exclude open source operating systems like Linux. Now, they’re beginning to exclude custom-built hardware as well. That might not seem like a major loss to the lobbyists who got the DMCA enacted–most of whom have probably never written a line of code in their life. But for those of us who enjoy the freedom and flexibility of being able to tinker with our hardware and software, it’s a major loss.
Update: Boing Boing has more.
Patrick Ross calls out DRM critics:
During the Grokster debate we always heard how P2P was simply a technology; it wasn’t evil. That’s true; the problem always was with the piracy on P2P, piracy encouraged by P2P software makers. Here a movie label is using P2P as a distribution tool. I’ll say this to all those opposed to DRM; if you can convince me this service would exist without DRM, I’ll make a donation to the Electronic Frontier Foundation. This new service, it seems, is further market innovation, driven once again by technological protection methods.
Ross is repeating an old refrain. In 1982, Hollywood’s top lobbyist, Jack Valenti, told us that the movie industry wouldn’t survive if Congress didn’t outlaw the “record” feature on the VCR:
But now we are facing a very new and a very troubling assault on our fiscal security, on our very economic life and we are facing it from a thing called the video cassette recorder and its necessary companion called the blank tape. And it is like a great tidal wave just off the shore. This video cassette recorder and the blank tape threaten profoundly the life-sustaining protection, I guess you would call it, on which copyright owners depend, on which film people depend, on which television people depend and it is called copyright.
Valenti said that “the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.” Valenti told us then–just as Ross tells us today–that if consumers were given the unfettered ability to make copies of movies, it will bankrupt Hollywood.
Valenti turned out to be spectacularly wrong. The videotape aftermarket grew to rival ticket sales as a revenue stream. It turns out that consumers value the convenience, legitimacy, and positive experience of purchasing legal content, even if they have the physical capacity to engage in piracy. Recording movies off the TV and editing out the commercials turned out to be too big of a headache for most Americans to bother with.
That was the experience in 1982, and there’s every reason that it would happen again in 2006. Legal downloads are better organized, more convenient, of higher quality, and less legally hazardous than piracy. The vast majority of consumers are likely to choose such legal downloads even if it’s physically possible for them to break the law.
Ross assumes, against all evidence, that DRM is an effective piracy deterrent. Peer-to-peer services already offer almost illegal copies of any movie on the market. All the DRM in the world isn’t going to make those networks go away. So what exactly is it supposed to accomplish besides pissing off paying customers who discover they can’t play their Warner Bros. movies on their iPods?
Update: Mike says that Warner Bros. will be charging as much for downloads as it does for the corresponding DVD, despite the enormous savings the studio will be enjoying on packaging and transportation costs. Why would any consumer pay the same price for the same product in a less convenient and untested format?
Ars reports that Amazon.com is planning to roll out a video-download service in April:
Amazon’s vision includes a try before you buy model, where you could download or stream a movie for a fee, and apply that fee as a credit towards the purchase price of the corresponding DVD, should the content tickle your fancy. Another idea is to provide free downloadable versions along with regular DVD purchases, to draw in those who would rather swing by the closest Wal-Mart or FYE for their movie needs, because they just can’t stomach waiting a couple of days for their DVDs to be delivered.
This is eerily reminiscent of MP3.com, the audio-streaming service that was unfortunately struck down as copyright infringement. The difference, of course, was that MP3.com was founded on the radical notion that once you purchase a CD, you have a right to do as you please with it as long as you don’t share it with others. If the last few months are any indication, Amazon’s service is likely to be quite different: sure, you’ll be able watch the movie right away, but you’ll only be able to do so with the official Amazon player, and on devices that adopt Amazon’s DRM format.
It will be interesting to see if Amazon releases yet another DRM format, or decides to piggy-back on one of the existing ones. There are already three major video DRM formats (Apple, Microsoft, and Google), all of them incompatible. The last thing we need is a fourth. At some point, consumers are going to start getting headaches when they have to keep track of which of their movies play on which of their devices and applications. Hollywood seems to consider irritating their paying customers a good business strategy.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.
